Citation Nr: 22019379 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 16-56 395 DATE: April 1, 2022 ORDER Service connection for a right shoulder disorder, to include degenerative joint disease (DJD), is denied. Service connection for a left shoulder disorder, to include DJD, is denied. Service connection for a right hip disorder, to include DJD, is denied. Service connection for a left hip disorder, to include DJD, is denied. FINDING OF FACT Bilateral shoulder and hip disorders were not incurred in, and are not otherwise etiologically related to, the Veteran's active service, including an in-service motor vehicle accident or the physical demands of service; bilateral shoulder and hip arthritis did not onset within one year of military separation. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disorder, to include DJD, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for a left shoulder disorder, to include DJD, have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for a right hip disorder, to include DJD, is have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for a left hip disorder, to include DJD, is have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1977 to July 1980, November 1980 to November 1983, and September 1990 to May 1991, including foreign service in Southwest Asia and with additional reserve service. For his meritorious service, the Veteran was awarded (among other decorations) the Southwest Asia Service Medal with three Bronze Stars and the Kuwait Liberation Medal. He testified before the undersigned Veterans Law Judge at a June 2019 travel board hearing. A transcript of this proceeding has been associated with the record. These matters were most recently remanded by the Board in November 2021 for additional development which has since been completed; specifically VA addendum opinions were obtained later that same month. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in November 2021, the Board notified the Veteran that he did not submit a timely Notice of Disagreement (NOD) to a May 2020 rating decision, such that a Statement of the Case (SOC) was not warranted. The Veteran attempted to submit an NOD in October 2021, outside of the regulatory period. 38 C.F.R. § 20.302. Thus, the purported NOD is not timely and does not activate the need for an SOC. Development for a separate appeal seeking service connection for sleep apnea is ongoing; a decision will be issued for this appeal stream (docket number 19-25 971) in the due course of business. Finally, the Veteran submitted a January 2022 statement challenging the assistance he had received from his representative, Barbara Lincoln. Attached to this statement was a signed Domestic Return Receipt, which the Veteran states was attached to the letter terminating Ms. Lincoln's representation. Given the Veteran's clear intent to withdraw Ms. Lincoln's power of attorney, and his efforts to establish that she has been notified of such, the Board finds that he proceeds in this appeal pro se. See 38 C.F.R. § 20.608. Service Connection The Veteran is pursuing service connection for bilateral hip and bilateral shoulder disorders on direct bases only. As these appeals require similar analyses, they will be addressed simultaneously herein. The Board will limit its analysis to those theories of entitlement as presented by the Veteran and the record. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As to the first element, the Veteran has been diagnosed with bilateral hip and shoulder disorders during the period on appeal, including: total hip arthroplasty due to degenerative arthritis with residual weakness bilaterally; bilateral shoulder DJD with impingement syndrome; bilateral shoulder strain; and bilateral rotator cuff tendonitis. See, e.g., March 2020 VA shoulder examination; March 2020 VA hip examination; March 2021 VA shoulder examination; March 2021 VA hip examination. Contemporaneous treatment records also show ongoing symptoms and the treatment thereof. Thus, the first element of direct service connection is met for all appeals. Briefly, the Board acknowledges that the Veteran has been diagnosed with arthritis of the bilateral shoulders and hips. However, it is apparent that these conditions did not onset within one year of military separation, such that the appeals cannot be granted on a presumptive basis. Id.; 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309. Rather, the Veteran has identified two in-service events or injuries which he associates with his current disorders: first, a 1989 motor vehicle accident, and second, the overall physical demands of service. Here, the Veteran's service treatment records (STRs) confirm that he was in a motor vehicle accident in July 1989 during a period of active duty for training (ACDUTRA), when a military jeep overturned and the Veteran was dragged along the ground. See 38 U.S.C. § 1106, 38 C.F.R. § 3.6(a) (establishing that a period of ACDUTRA qualifies as active service if a veteran was disabled or died from a disease or injury incurred or aggravated in line of duty). He has also offered competent and credible testimony regarding the physical demands of service, during which he routinely carried heavy tools and firearms and also frequently had to lift vehicles/trailers off the ground to change their tires. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020); see, e.g., lay statements dated December 2021 and January 2022. Thus, the second element of direct service connection is also met for these appeals. Accordingly, the appeals may be granted upon a finding that the current disorders are causally related to the Veteran's military service. As an initial matter, the Board acknowledges that VA nexus opinions were obtained in March 2020. However, these opinions were found to be inadequate in a September 2020 Board decision, such that they do not merit consideration herein. Rather, the Veteran underwent VA hip and shoulder examinations in March 2021. Corresponding nexus opinions contain the examiner's conclusion that the claimed disorders were less likely than not related to the Veteran's military service. In each instance, the examiner noted that review of the claims file revealed that the Veteran was involved in a motor vehicle accident when the seatbelt of his military jeep broke and he was dragged along the ground. However, the only complaints noted from the incident were a contusion to the right arm and chest, with no problems noted for the bilateral hips or shoulders. Further evidence review also shows that the Veteran separated from service in 1991, and there was no chronicity of care from discharge until 2015 (for the shoulders) and 2018 (for the hips), several decades following military separation. Additionally, there was no evidence of relevant hip or shoulder pain during April 1991 exit examination or within one year after service separation. Accordingly, a nexus was not established with respect to the claimed disorders. Here, the Board acknowledges that one of the March 2021 opinions requests an assessment of the Veteran's left hip, but the corresponding rationale references the right hip only. The Board does not find that this minor editing error undermines the probative value of the overall opinion, which is clearly meant to address the left hip and is based upon a medical history and factual overview which remain fully intact. Accordingly, the opinion is accepted with respect to the left hip. A series of negative addendum opinions were also obtained following November 2021 examination. At that time, the examiner concluded that it was less likely than not that the claimed disorders were related to military service. By way of rationale, the right shoulder examiner observed that no right shoulder injury was found in the Veteran's service records, and no right shoulder condition was found at separation. The Veteran reports current right shoulder arthritis, but there was no objective evidence of this. Rather, there is a 1999 VA examination wherein the Veteran reported shoulder aches with rain. Accompanying x-rays were normal. This evaluation occurred eight years after service, and there were no findings relevant to the right shoulder. Moreover, the Veteran reported physical labor occupations post-service. There were changes of the right shoulder found in 2014 and thereafter, which has no proximate relationship to service or service-related work whatsoever. There was also a fall noted with injury in 1995. Thus, based on the medical records, imaging, lay statements, hearing testimony, and Board remands, the Veteran's right shoulder disorder was less likely than not related to service. Similarly, the left shoulder examiner observed that no left shoulder injury was found in the Veteran's service records or found at separation. Instead, the 1999 VA examination noted the Veteran's reports of shoulder aches with rain, though accompanying x-rays were normal. This evaluation occurred eight years after service, and there were no findings relevant to the left shoulder. Moreover, the Veteran reported physical labor occupations post-service. Changes in the left shoulder were found in 2010, which has no proximate relationship to service or service-related work whatsoever. Thus, based on the medical records, imaging, lay statements, hearing testimony, and Board remands, the Veteran's left shoulder disorder was less likely than not related to service. This exact rationale was also offered with respect to both hips, including the examiner's contemplation of the Veteran's entry and exit records, 1999 VA examination, and lay statements. Here, the Board acknowledges that one sentence in each assessment incorrectly references the left shoulder; however, the accompanying rationale appropriately cites to the hip at issue, offers an accurate factual overview, and contemplates the Veteran's testimony relating to his hips. Thus, these opinions are accepted with respect to the bilateral hips, as well. The above opinions are probative evidence against the appeals. Collectively, they are derived from contemporaneous evaluation of the Veteran, direct contemplation of his lay testimony, review of the relevant medical records, and assessment as to the identifiable etiology of the claimed condition; critically, all theories of entitlement have now been addressed. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Other than the inconsequential misstatements identified above, there is no indication that the VA examiners were not fully aware of the Veteran's past medical history or misstated any relevant fact in formulating the opinions. Moreover, the examiners possess the requisite expertise to render competent opinions as to complex medical matters, to include the etiology of the Veteran's bilateral hip and shoulder disorders. In contrast, the only positive opinion of record is that offered by the Veteran. However, he is not shown to possess the requisite medical training and expertise to offer a competent opinion on complex medical matters. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value is offered to the medical evidence in assessing the etiology of the Veteran's disorders, which supports the denials set forth herein. In offering this finding, the Board does not disregard the Veteran's contention that his VA examiners "don't know me" and seemingly based their opinions on an incomplete understanding of his history. See January 2022 lay statement. However, the examination reports clearly establish that the examiners undertook exhaustive review of the Veteran's medical records and lay testimony in formulating their opinions, and afforded the Veteran ample opportunity to offer additional testimony. Thus, the Board does not find that there are any theories of entitlement or supporting details which were not fully contemplated by the examiners. Accordingly, the persuasive evidence of record is against the Veteran's claims; the evidence is not in approximate balance; and the benefit of the doubt rule is inapplicable. The appeals are hereby denied. [CONTINUED ON NEXT PAGE] Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.